Three Ways to Protect Your Interests as a Groundwater User in California

Three Ways to Protect Your Interests as a Groundwater User in California

Glen Gordon, engineering geologist with the California Department of Water Resources, measures the water depth at specific agricultural wells in Colusa County on March 17, 2016.Kelly M. Grow / California Department of Water Resources

CALIFORNIA’S SUSTAINABLE GROUNDWATER Management Act (SGMA) requires each local Groundwater Sustainability Agency to develop and implement a Groundwater Sustainability Plan for its basin and the first plans for critically overdrafted basins are due to be completed by January 31, 2020. Each plan must be designed to achieve safe yield within 20 years.

This new regime of groundwater management is a monumental change in California water law. Overlying land owners have long enjoyed the right to extract groundwater for beneficial use on their land, and the agricultural, municipal, mining and industrial sectors rely heavily on groundwater resources to meet their water needs. It is difficult to fathom the collective investment that California businesses have made in reliance on the right to make beneficial use of groundwater.

In response to SGMA’s passage, public and private stakeholders have scurried to identify new water sources to augment existing supplies. However, the Department of Water Resources’ recently issued Water Available for Replenishment report seems to confirm longstanding conventional wisdom: There is no water supply panacea for solving California’s groundwater management crisis.

California is not the first Western state to grapple with groundwater overdraft, and there are lessons to be learned from previous experiences. In Arizona, the interest groups that were effectively represented in the negotiations resulting in the new groundwater regulations fared much better than the groups that waited for the process to unfold. Some water users enjoyed widespread protection of existing groundwater uses, while others were cut off from valuable supplies that would have supported significant economic growth.

Accordingly, the next 18 months are critical for stakeholders in California. Each Groundwater Sustainability Agency is evaluating an assortment of potential measures to reduce groundwater uses in its basin, including “regulating, limiting, or suspending extractions from individual groundwater wells.” That’s right – the Groundwater Sustainability Agency in your basin has the statutory authority to turn off your pumps.

SGMA provides little in the way of substantive protections for groundwater users. However, procedurally, SGMA requires each Groundwater Sustainability Agency to consider the interests of all groundwater users in the basin, and diligent stakeholders who make certain that their interests are considered are likely to find themselves in a much better place on January 31, 2020 than those who sit on the sidelines and wait for the dust to settle.

Proactive engagement in the process is the name of the game. Here are three things to make sure to do:

Every concerned stakeholder should request to be added to the Groundwater Sustainability Agency’s notification list. This gets you invited to the party.

You must show up to the party – repeatedly and consistently. Getting on the mailing list does you little good unless you actively engage in the plan preparation process. This includes participating in meetings, and providing thoughtful, substantive input on proposals and drafts.

Participation in this way serves multiple important purposes. First, it is critical that your Groundwater Sustainability Agency representatives get to know you. You want them to have a sense for your water uses and the businesses they support. They need to understand what is at stake for you and your business.

You also want your Groundwater Sustainability Agency to understand clearly that you are in this for the long haul, and that you will do whatever is reasonably necessary to protect your water uses and your business. In this regard, it is wise to assemble an interdisciplinary team capable of addressing the various legal, scientific and business issues that influence a plan’s contents. As we’ve experienced in Arizona, choosing the right expertise is critical. For instance, teaming with an experienced water litigator will enable you to navigate the complicated water law issues, while also harmonizing your plan development activities with litigation strategy.

Document your interests as a water user. Each stakeholder should create a comprehensive written record reflecting the information that the Groundwater Sustainability Agency is required to consider, and do it in a way that is likely to have a positive influence on plan development.

This written record also supports a legal challenge if your concerns are not adequately considered. This is important, because the measures that will be required to achieve sustainable yield are likely to involve unacceptable levels of future economic risk for many stakeholders, and it therefore seems inevitable that many Groundwater Sustainability Plans will be litigated. A stakeholder who helped to create the written record of the plan development process will be in a much better position, whether that stakeholder ultimately seeks to defeat the Groundwater Sustainability Plan, or defend the plan against others who may fare worse under its measures.

While neither curtailment nor litigation can be avoided across the board, some stakeholders will avoid adverse outcomes through successful participation in the plan development process. The opportunities to protect your water use are much greater today than they will be in 18 months. Now is the time to actively engage in the process.